New Litigation

August 30, 2011

Hill-Rom Services, Inc. Sues Stryker Corporation for Patent Infringement of Hospital Bed Systems, Case Transferred to Southern District of Indiana

Indianapolis, IN – A patent infringement case originally filed in the Western District of Wisconsin has been transferred to the Southern District of Indiana. Patent lawyers for Hill-Rom Services, Inc of Batesville, Indiana filed a patent infringement suit alleging Stryker Corporation doing business as Stryker Medical and Stryker Sales Corporation of Kalamazoo, Michigan infringed patent numbers 5,771,511, Thumbnail image for Patent Picture.jpg Communication network for a hospital bed, 7,237,287, Patient care bed with network, and seven other hospital bed communication patents which has been issued by the US Patent Office.

The nine patents at issue are communications systems and adjustment systems for hospital beds. The complaint alleges that Stryker manufactures and offers for sale three lines of hospital beds, InTouch, S3, and GoBed II, which infringe Hill-Rom’s patents. Stryker filed a motion to transfer the case to the Southern District of Indiana, which was granted on August 15.

Practice Tip: 28 U.S.C. 1404 allows transfer of a case from one district court to another by order of the court or by stipulation and consent of the parties. It appears that Stryker argued that the Southern District of Indiana was a more convenient and a less expensive jurisdiction to litigate this case. One of Stryker’s attorneys filed declaration with the estimated travel expenses to the Western District of Wisconsin. Since the Southern District of Indiana is the plaintiff’s home district in this case, it is hard to argue that transfer would cause prejudice to the plaintiff.

August 29, 2011

AFC Enterprises, Inc., Popeye’s Chicken Sue Christopher Payne, LP&P Foods, and 10 John Does for Trademark Infringement of Popeye’s Mark in Indianapolis Restaurant

By Overhauser Law Offices, LLC

Indianapolis, IN – Trademark lawyers for AFC Enterprises, Inc. of Georgia, doing business as Popeye’s Chicken, filed a trademark infringement suit alleging Christopher Payne, LP&P Foods, and ten John Does of fIndiana infringed trademark registration no. 1030944 for the mark POPEYES, 1107575 POPEYE SIGN DESIGN WITH COLOR and numerous other trademarks registered with the US Trademark Office. Popeye’s has also registered copyrights for some of the items at issue here.

This dispute arises out of the operation of a Popeye’s restaurant at 6014 East 46^th Street in Indianapolis utilizing the Popeye’s trademarks. According to the complaint, AFC had a franchise agreement with another individual, not a party to this suit, to operate a Popeye’s franchise at this Indianapolis location, however, that franchise agreement was terminated in August 2010. Following the termination of the franchise agreement, Mr. Payne, who operated a Popeye’s franchise in Fort Wayne with LP&P Foods, approached AFC and sought to become the franchisee at this location under a new franchise agreement. AFC declined to enter a franchise agreement with Mr. Payne. On July 31, 2011, AFC learned that Mr. Payne was operating a fried chicken restaurant at the East 46^th Street location and was utilizing the Popeye’s marked items that were left behind when the franchise closed, including signs and menu boards. According to the complaint, the restaurant ceased operation on August 6, 2011 and tarps covered the signs.

Practice Tip: In Indiana, criminal conversion is defined as knowingly exerting unauthorized control over property of another person. Indiana law allows the person harmed by criminal conversion to sue for treble damages, equal to three times actual damages, as well as attorney fees and cost. If true, the allegations contained in this complaint appear to make a case for conversion, and the defendants are likely to be liable for a significant monetary sum.
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August 25, 2011

Choice Hotels Sues Shreya Pravin LLC for Trademark Infringement of QUALITY Mark at Lebanon, Indiana Hotel

By Overhauser Law Offices, LLC

Indianapolis, IN – Trademark lawyers for Choice Hotels International Inc. of Silver Spring, Maryland filed a trademark infringement suit in the Southern District of Indianaalleging Shreya Pravin LLC, of Lebanon, Indiana, Vina Investments, LLC of Valrico, Florida, Riddhi, LLC of Corona, California, Sunil R. Patel of California and Shirish Patel of California have infringed trademark registration no. 1,050,372 for the mark QUALITY, which has been registered with the US Trademark Office.

Choice is a hotel franchise company that owns the numerous trademarks at issue in this suit. According to the complaint, Shreya Pravin LLC entered a franchise agreement to operate Choice franchise in Lebanon, Indiana. As part of the franchise agreement, Pravin was granted license to use the Quality mark on various items including: signs, stationary, lobby displays, and items in the hotel rooms. In June 2008, Choice sent Pravin a notice of default claiming Pravin had not paid franchise fees due under the contract. In August 2008, Choice sent Pravin a letter terminating the franchise agreement due to continued breach of the contract. The letter demanded that Pravin immediately take down and cease to use all of the items bearing the Quality trademarks. The complaint alleges that in May 2011, Pravin continued to use the Quality mark on its sign. Choice’s trademark attorneys have made claims of federal and Indiana trademark infringement, false designation of origin, and unfair competition and are seeking damages, injunction, punitive damages, costs and attorney fees.

Practice Tip: When a franchise agreement terminates, typically the franchisee must promptly cease using and return all signs and other equipment containing trademarks. Failure to do so may result in a lawsuit for breach of contract as well as trademark infringement

August 24, 2011

Breach of Contract Claim Over Intellectual Property Rights to Software For County Governments Survives Summary Judgment in Nikish Software Corp. v. Manatron Inc.

By Overhauser Law Offices, LLC

Indianapolis, IN – Judge Tanya Walton Pratt of the Southern District of Indiana denied summary judgment on what would have disposed of a dispute over the intellectual property rights to tax software used by many Indiana county governments. Nikish Software Corporation of Commack, New York had sued Manatron Incorporated of Portage, Michigan, alleging breach of contract regarding intellectual property rights to the software.

This dispute arose over rights to software and related services that have been provided to over 80 Indiana county governments by Manatron and similar software and services provided by Nikish to Indiana counties. Nikish and Manatron originally worked together to develop software systems for Dauphin County, Pennsylvania and Baltimore County, Maryland. At the completion of these projects, the two companies parted ways and signed a settlement agreement whereby Nikish agreed not to disclose or reproduce any of Manatron’s confidential or proprietary information, specifically Manatron’s tax software. Thereafter, Nikish began developing its own tax software to compete with Nikish. In 2006, Nikish marketed its software to Vigo County, Indiana. When Manatron discovered Nikish’s marketing efforts in Indiana, it sent a letter to 56 Indiana counties and the Indiana Department of Local Government Finance stating that Nikish’s software was “nothing more than a misappropriated derivative copy” of Manatron’s software. In 2007, Nikish brought the present lawsuit. Manatron counterclaimed alleging copyright infringement of its software, but the court denied the copyright infringement claim in a prior ruling.

The court’s most recent ruling denied summary judgment in favor of Manatron on the breach of contract claim, allowing that claim to go forward. Judge Pratt granted summary judgment denying Nikish’s tortuous interference with contract, tortuous interference of business relationships, and defamation claims. Following the summary judgment, the breach of contract claim would have gone to a jury for ultimate disposition. However, the parties reached a settlement. The court then dismissed the case on July 15, 2011, pursuant the stipulation and settlement of the parties.
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August 22, 2011

Choice Hotel Sues SBQI, Inc. for Trademark Infringement of QUALITY Mark at South Bend Hotel

By Overhauser Law Offices, LLC

South Bend, IN – Trademark lawyers for Choice Hotels International, Inc. of Silver Spring, Maryland filed a trademark infringement suit in the Northern District of Indianaalleging SBQI, Inc. of South Bend, Indiana and eight Illinois individuals infringed trademark registration no. 0,886,881 for the mark QUALITY, which has been registered with the US Trademark Office.

Choice is a hotel franchise company that owns the numerous trademarks at issue in this suit. According to the complaint, SBQI, Inc. entered a franchise agreement to operate Choice franchise in South Bend, Indiana. As part of the franchise agreement, SBQI was granted license to use the Quality mark on various items including: signs, stationary, lobby displays, and items in the hotel rooms. In November 2010, Choice sent SBQI a notice of default claiming SBQI had not paid franchise fees due under the contract. In December 2010, Choice sent SBQI a letter terminating the franchise agreement due to continued breach of the contract. The letter demanded that SBQI immediately take down and cease to use all of the items bearing the Quality trademarks. The complaint alleges that in May 2011, SBQI continued to use the Quality mark on its sign. Choice’s trademark attorneys have made claims of federal and Indiana trademark infringement, false designation of origin, and unfair competition and are seeking damages, injunction, punitive damages, costs and attorney fees.

Practice Tip: When a franchise agreement terminates, typically the franchisee must promptly cease using and return all signs and other equipment containing trademarks. Failure to do so may result in a lawsuit for breach of contract as well as trademark infringement.

August 19, 2011

The Guardian Reports on BitTorrent Litigation Citing TorrentFreak Calculation That 200,000 John Does Have Been Sued

By Overhauser Law Offices, LLC

London, U.K. – The Guardian newspaper of London recently reported on the rash of BitTorrent lawsuits that have been filed in the United States. The Guardian reports on the claims of a blogger named TorrentFreak who has been vigorously tracking the BitTorrent lawsuits. Notably, TorrentFreak tracks that over 200,000 “John Does” have been named as defendants in BitTorrent-related copyright infringement lawsuits. According to these reports, a majority of the suits involve online music sharing.

TorrentFreak describes the BitTorrent-related copyright infringement lawsuits as “pay-up-or-else schemes” and describes the economics behind the suits. She notes “Copyright holders have embraced this new revenue stream by the dozen and new lawsuits are being filed every week.” The reports note that after the identity of the “John Doe” is disclosed through discovery on Internet Service Providers, the copyright holders contact the person and offer to settle for $2,500. Because most John Does prefer to pay the $2,500 rather than face legal costs and possible $150,000 fine, none of the cases have gone to trial.

Practice Tip: Indiana Intellectual Property Law News has been closely following the Bittorrent litigation recently Indiana, all of which so far involve adult entertainment file sharing, rather than music. Our reports are available here:

August 16, 2011

Alleging Infringement of Container Patent, Mead Johnson Sues Nestle and Gerber

By Overhauser Law Offices, LLC

Evansville, IN – Through its patent attorneys, Mead Johnson Nutrition Co., of Glenview, Illinois, has filed a patent infringement lawsuit against Nestle S.A. of Switzerland; Nestle USA Inc. of Glendale, California; and Gerber Products Co. d/b/a/ Nestle Infant Nutrition of Florham Park, New Jersey. The complaint alleges infringement of U.S. Patent No. 7,040,500, which is titled “Container and Scoop Arrangement.” The ‘500 patent is directed to a container for housing granulated products which includes a recessed base and, for easy product removal, a circumferential channel capable of receiving a scoop.

The patent lawyers for the plaintiff Mead Johnson point to two Internet postings, both made in March of 2011, announcing Gerber’s EASYSCOOP™ plastic packaging and the new packaging to be used for Gerber’s GOOD START® infant formula. Alleging that the EASYSCOOP™ packaging is currently in commerce and directly infringes the ‘500 patent, the plaintiff also includes in its complaint counts claiming that the defendants have induced infringement by third-parties through offering the GOOD START® product in the EASYSCOOP™ container for sale, selling it, and advertising it to retailers and consumers. The plaintiff seeks a permanent injunction against the defendants as well as a tripling of damages based on alleged willful infringement.

Practice Tip: U.S. patent law provides that making, using, selling, offering to sell, or importing a patented invention is direct patent infringement. In addition, 35 U.S.C. § 271(b) provides that “[w]hoever actively induces infringement of a patent shall be liable as an infringer.” Thus, a holder of a method patent could have an inducement claim against a product manufacturer if the patent is infringed by consumers using the manufacturer’s product. Under the latest precedent of the Federal Circuit (the federal appeals court with jurisdiction over appeals from patent trials and Patent Office proceedings), the standard for inducing patent infringement requires a showing of actual knowledge of a patent or “willful blindness” to the existence of one.

August 2, 2011

Gian Biologics v. Biomet, Patent Infringement Lawsuit Over Centrifuge Tube Assembly, Transferred to the Northern District of Indiana

By Overhauser Law Offices, LLC

South Bend, IN – A patent infringement lawsuit that was originally filed in the District Court of Delaware was transferred to the Northern District of Indiana. Patent lawyers for Gian Biologics LLC of Delaware filed a patent infringement suit in the District Court of Delaware alleging Biomet, Inc. of Warsaw, Indiana infringed patent no.6,835,353 CENTRIFUGE TUBE ASSEMBLY, which has been issued by the US Patent Office.

The patent at issue is used for holding blood and separating blood product in to discrete components. The complaint alleges that Biomet makes, uses, sells, offers for sale and/or imports infringing products, namely several Biomet product lines including Plasmax Concentrator and Gravitational Platelet Separation Systems. The complaint alleges one count of patent infringement and seeks injunction, damages, attorney’s fees and costs. Gian’s patent attorneys filed the complaint in October 2010.

The case has now been transferred to the Northern District of Indiana by stipulation of the parties. It appears that initially Gian resisted transfer, and the Delaware District Court allowed limited discovery on the issue of transfer. According to the Delaware IP Law Blog, it was revealed that Gian had only been incorporated in Delaware for four months before the lawsuit was filed. The Delaware District Court had then stayed further discovery until the venue issue was resolved and noted it had doubts about whether the case should remain its court. In the parties’ stipulation agreeing to transfer, it was noted that “In order to conserve resources – and in light of the fact that the parties are engaged in a parallel patent infringement case in Germany that is scheduled for a bench trial on November 8, 2011 – Gian has concluded that the most efficient resolution would best be accomplished through a stipulated transfer at this time.”

Practice Tip: 28 U.S.C. 1404 allows transfer of a case from one district court to another by order of the court or by stipulation and consent of the parties.

July 28, 2011

Another Update to Hard Drive v. 21 Indiana John Does: Attorney Files Motion to Dismiss, Court May Strike Anonymous Letters

By Overhauser Law Offices, LLC

Indianapolis, IN – There have been further updates to the Hard Drive Productions case in the Southern District of Indianathat Intellectual Property Law News has been closely following. The Hard Drive case is one of three similar copyright infringement lawsuits in the Southern District of Indiana all involving file sharing of adult entertainment videos via BitTorrent. The other two are the Boy Racer case and the First Time Videos case.

In one development, an attorney has filed a motion to dismiss and motion to quash subpoena on behalf of one of the John Does, who remains unnamed but has his or her I.P. address listed on the motion. The motion to dismiss argues that the Court does not have personal jurisdiction since the John Doe does not live in or have sufficient contacts with Indiana and that the defendants have been misjoined since none of the controversies arise out of the same facts or occurrences. The motion also argues that a subpoena that has been served on internet service provider Comcast requesting the name and identifying information for this John Doe is unduly burdensome.

In another development, the Court has ordered the authors of the anonymous letters, subject of an Intellectual Property Law News blog last month, to appear before the court and show cause why their letters should not be stricken from the record. If the authors do not appear by September 9, the Court will strike their letters from the case docket.

July 26, 2011

Saeilo Enterprises Sues Scottwerx in Hamilton County for Trademark Infringement of Tommy Gun Mark: Case Removed to Federal Court

By Overhauser Law Offices, LLC

Indianapolis, IN – A trademark infringement lawsuit filed in Hamilton County, Indiana Superior Court was removed to Southern District of Indiana. Trademark lawyers for Saeilo Enterprises, Inc. of Pearl River, New York had filed a trademark infringement lawsuit in the Hamilton County Superior Court alleging Scottwerx LLC of LaCrescenta, California infringed trademark registration no.2,885,628 for the mark TOMMY GUN which has been registered with the US Trademark Office.

The complaint alleges that Scottwerx has manufactured, produced and sold replica firearm kits that bear Saeilo’s registered trademarks without authorization from Saeilo. The complaint has attached a picture from Scottwerx’s website of the allegedly infringing product. The complaint alleges Indiana courts have jurisdiction because Scottwerx offers the product for sale in Indiana. However, the complaint does not mention any specific sales in Indiana and only refers to Scottwerx’s website. Saeilo’s complaint asserts claims of federal trademark infringement, federal trademark dilution, false designation of origin, false advertising, trade dress infringement, common law trademark infringement, unfair competition, conversion, forgery, counterfeiting, and deception. The complaint seeks a permanent injunction, damages, treble damages, profits, attorney’s fees and costs.

Practice Tip: Last month, Saeilo filed a very similar trademark infringement lawsuit in Hamilton County that was also removed to federal court. Indiana Intellectual Property Law News blogged about that case here. That case alleged that Buzz Bee Toys infringed the same trademarks that are at issue in this lawsuit. According to PACER, trademark attorneys have reached a settlement in the Buzz Bee case. The terms of the settlement are undisclosed.